Forsythe, Riley v. Colvin, Carolyn
Filing
18
ORDER denying 11 motion for summary judgment and affirming the Commissioner's decision regarding Social Security benefits RE: 8 Social Security Transcript. Signed by District Judge Barbara B. Crabb on 4/23/2015. (kwf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - RILEY FORSYTHE,
OPINION AND ORDER
Plaintiff,
14-cv-509-bbc
v.
CAROLYN W. COLVIN,
Acting Commissioner, Social Security
Administration,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiff Riley Forsythe is seeking review of a final decision by defendant Carolyn W.
Colvin, Acting Commissioner of Social Security, denying his claim for disability insurance
benefits and supplemental social security income under the Social Security Act. 42 U.S.C.
§ 405(g). The administrative law judge who decided the case concluded that plaintiff
suffered from the severe impairments of status-post femur fracture, left ankle fracture, statuspost left knee arthroscopy and right rotator cuff impairment, but that plaintiff retained the
residual functional capacity to perform sedentary work that did not require him to reach
overhead with his right arm more than occasionally.
Plaintiff contends that the administrative law judge failed to give proper weight to
statements by plaintiff’s treating physicians that he could not perform sustained work and
gave too much weight to his testimony regarding his daily activities. (These are the only
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challenges I will consider. Plaintiff is represented by experienced counsel and has chosen to
confine his challenges to these. Shramek v. Apfel, 226 F.3d 809, 811 (7th Cir. 2000)
(“issues that are not raised before the district court are waived on appeal”); Ehrhart v.
Secretary of Health & Human Services, 969 F.2d 534, 539 (7th Cir. 1992) (“[W]e observe
that compelling the court to take up a burdensome and fruitless scavenger hunt for
arguments is a drain on its time and resources.”); Bollas v. Astrue, 694 F. Supp. 2d 978, 990
(N.D. Ill. 2010) (“Issues not raised in a claimant's initial brief are generally waived for
purposes of review.”). Cf. Glenn v. Secretary of Health & Human Services, 814 F.2d 387,
391 (7th Cir. 1987) (“When an applicant for social security benefits is represented by
counsel the administrative law judge is entitled to assume that the applicant is making his
strongest case for benefits.”).) Because I conclude that the administrative law judge gave
good reasons for discounting the statements by the treating physicians, I am denying
plaintiff’s motion for summary judgment and affirming the commissioner’s decision.
The following facts are drawn from the administrative record (AR):
RECORD FACTS
A. Medical History
In 1998, plaintiff dislocated his kneecap and had a steel plate placed in it. He was
injured in a snowmobiling accident in 1999 and shattered his femur and now has a steel rod
in his leg from his hip to his knee. Plaintiff also injured his shoulder in the same accident;
the shoulder has healed and can no longer be surgically repaired. He sees a chiropractor for
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lower back pain. AR 79. Despite these ailments, plaintiff held a variety of jobs between
2000 and 2010, including working as a cable installer, a cheese maker and most recently as
a truck stop maintenance technician from 2006 to 2010. AR 71-78. Plaintiff was 33 and
a high school graduate on June 30, 2010, when the truck stop at which he was employed
went out of business. He attempted to find other work, but was unsuccessful.
On May 6, 2011, plaintiff was trying to pull a tractor with another tractor when the
chain he was using snapped and struck him in the left ankle, causing a fracture. AR 255.
He was treated for this injury by Dr. Eckerman, a podiatrist, who performed surgery to
repair the ankle in August 2011. One month after surgery, Dr. Eckerman noted that
plaintiff’s fracture had been slow to heal but that the pain and swelling had gone down and
plaintiff had good range of motion. AR 302. Plaintiff reported feeling better through
December 2011.
On December 12, 2011, agency physician Dr. Pat Chan reviewed
plaintiff’s medical record and determined that the record showed that plaintiff’s ankle injury
was healing, and that all of the medical-vocational guidelines would direct a finding of “not
disabled,” given Forsythe’s age, education and residual functional capacity, all of which
would allow him to adjust to other work. AR 306.
In January 2012, plaintiff complained to Dr. Eckerman of increased pain and
swelling. AR 315. In February 2012, he went to see another physician, Dr. Logan, who
noted that plaintiff’s ankle was not giving him significant problems but that plaintiff had a
limp and experienced back spasms at night, for which he was taking medication. AR 345.
In April 2012, Dr. Eckerman noted that plaintiff was still having pain in his ankle. AR 317.
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In May and June of 2012, respectively, Dr. Logan and Dr. Eckerman completed a residual
functional capacity form noting that plaintiff could not sit or stand for more than fifteen
minutes at a time, could walk only 100 feet and would need 15-20 minute breaks eight times
during an eight hour workday. AR 320-24.
In August 2012, Dr. Eckerman stated that plaintiff was “certainly better” and
although he still had some irritation when on his ankle “he is pretty active . . . he is on it
quite a bit.” AR 326. In his opinion, the lingering pain was probably attributable to the
hardware in plaintiff’s ankle and tendinitis. Id.
On December 17, 2012, Dr. Logan evaluated plaintiff and determined that he had
a significant amount of pain down his left side that worsened if he was lifting, pushing,
standing for over five minutes, going up or down stairs or walking for more than a block.
Dr. Logan stated that plaintiff “cannot perform the activities of daily living.” AR 347. On
December 19, 2012, Dr. Eckerman evaluated plaintiff and noted that his ankle fracture had
nearly healed, he was in regular shoes and he was feeling better, although walking with a
limp. AR 317.
In February 2013, plaintiff had the hardware removed from his ankle. On February
25, 2013, plaintiff reported his status as improving, and Dr. Eckerman noted that he was
healing well without complication, the range of motion in his ankle was acceptable postoperatively and plaintiff was full-weight bearing. AR 355. On the same day, Dr. Eckerman
wrote plaintiff a note that stated:
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To Whom It May Concern:
Riley Forsythe is currently under my medical care and may not return to work
at this time. Activity is restricted as follows: off work due to foot surgery and
being non-weightbearing.
If you require additional information please contact our office.
AR 353. The sutures were removed from plaintiff’s ankle in March 2013. On March 4,
2013, Dr. Eckerman noted that plaintiff had very little pain and swelling, his work status
was “light work/activity,” and he was not taking any pain medication. AR 351.
B. Adminstrative Law Judge’s Decision
At step one of the five-step analysis prescribed in 20 C.F.R. § 404.1520, the
administrative law judge found that plaintiff had not been engaged in gainful employment
since June 30, 2010. At step two, the administrative law judge found that plaintiff suffered
from the severe impairments of a left femur fracture, left ankle fracture, left knee arthroscopy
and right rotator cuff impairment. He also found that plaintiff had degenerative disc disease
of the thoracic and cervical spine, but that this impairment was not severe in light of the
records from plaintiff’s chiropractor indicating that plaintiff’s condition improved quickly
with treatment. At step three, the administrative law judge concluded that none of the
impairments were medically equivalent to any of the listed impairments in 20 C.F.R. § 404,
Appendix 1. The administrative law judge stated that because there was no listing for
obesity, he considered plaintiffs’s obesity in assessing his other impairments and their
relationship to the requirements of the listings. AR 33.
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The administrative law judge then determined that the plaintiff had the residual
functional capacity to perform sedentary work as defined in 20 C.F.R. § 404.1567(a) and
416.967(a), except that he should only occasionally reach overhead with his right arm. AR
33. The administrative law judge explained although plaintiff’s medical impairments could
reasonably be expected to cause the symptoms plaintiff alleged, plaintiff’s statements
concerning the intensity, persistence and limiting effects of these symptoms were not entirely
credible. AR 34. He then gave the following reasons for making his residual functional
capacity determination: the record confirmed that plaintiff’s femur fracture, shoulder injury
and left knee impairment were longstanding problems that had not prevented plaintiff from
working in the past; plaintiff stopped working around the time of his alleged onset date of
June 30, 2010, because the business where he worked closed; the record contained no
evidence of treatment for nearly a year following plaintiff’s alleged onset date until May 6,
2011, when plaintiff was trying to pull a tractor with another tractor and the chain he was
using snapped, fracturing his ankle; plaintiff had reported in February 2012, that the ankle
was not giving him a significant amount of difficulty; plaintiff’s medical records indicated
that his ankle injury improved within 12 months to the point that plaintiff could perform
sedentary work; and the activity level plaintiff described at the hearing was not consistent
with greater limitations than those assessed by the administrative law judge. AR 34.
At step four, the administrative law judge concluded that plaintiff could not perform
any relevant past work under the residual functional capacity finding he had made. AR 36.
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At step five, the administrative law judge found from the testimony of a vocational expert
that plaintiff could work as production worker, information clerk or cashier. AR 37.
OPINION
In his March 22, 2013 written opinion, the administrative law judge gave little weight
to the opinions of Dr. Logan and Dr. Eckerman, finding that the record did not support the
extreme limitations they had assessed in 2012 and 2013. It is a well-settled rule that a
treating physician’s medical opinion is entitled to controlling weight if it is supported by
objective medical evidence and consistent with other substantial evidence in the record. 20
C.F.R. § 404.1527(c)(2); Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013). Although
an administrative law judge is not required to give a treating physician’s opinion controlling
weight, he is required to provide a sound explanation for rejecting it. Id. at 636. In making
his decision, the administrative law judge must build a logical bridge from the evidence to
his conclusion. Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005). “[A]n ALJ can give
less weight to a doctor’s opinion if it is internally inconsistent or inconsistent with the other
substantial evidence in the record as long as she articulates her reasons for giving the opinion
less weight.” Hall ex rel. Hall v. Astrue, 489 F. Appx. 956, 958 (7th Cir. 2012).
The administrative law judge gave the following reasons for not incorporating all of
the limitations assessed by plaintiff’s treating physicians:
1. Dr. Logan’s assertion that the claimant could not perform his activities of daily
living was not supported by plaintiff’s own testimony in which he reported
helping his parents around the house and helping care for his son;
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2. The extreme limitations described by Dr. Eckerman were inconsistent with
plaintiff’s own testimony about his level of activity;
3. Around the same time Dr. Logan provided his opinions, the record showed that
plaintiff was less symptomatic and pretty active, and that his ankle was wellhealed;
4. The evidence in the record indicated that plaintiff’s condition improved
significantly;
5. It appeared that Dr. Eckerman’s February 2013 opinion that plaintiff might not
return to work was related to the recent surgery plaintiff described at the hearing,
and there was no indication it was intended to be more than a temporary
restriction.
AR 34. The administrative law judge gave great weight to the opinions of the agency
physicians that plaintiff did not have any functional limitations between June 30, 2010 and
May 5, 2011, and that after May 5, 2011, he should be limited to a sedentary exertional
level. Id. The administrative law judge determined that these opinions were fully supported
by the medical evidence in the record. Id.
Plaintiff objects to the administrative law judge’s determination, contending that he
gave too much weight and consideration to plaintiff’s daily activities. Plaintiff is correct in
saying that helping his parents around the house and caring for his son are not sufficient by
themselves to rebut his treating physicians’ opinions. The Court of Appeals for the Seventh
Circuit has cautioned “that a person’s ability to perform daily activities, especially if that can
be done only with significant limitations, does not necessarily translate into an ability to
work full-time.” Roddy, 705 F.3d at 639. Plaintiff testified that he typically very little
around the house, but helped his parents occasionally with the dishes, sweeping, vacuuming
and doing laundry. AR 81.
He also helps care for his son.
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AR 82.
Although the
administrative law judge said that plaintiff did not testify to having significant difficulty with
daily activities, the activities at issue are light ones that can be done in a very short time and
with minimal effort. On its own, plaintiff’s ability to do these chores is not sufficient to
rebut the opinions of plaintiff’s treating physicians or to show that plaintiff was capable of
performing full-time sedentary work. This flaw does not mandate a remand, however,
because the administrative law judge gave several other good reasons for discounting the
opinions of the treating physicians. Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989)
(“No principle of administrative law or common sense requires us to remand a case in quest
of a perfect opinion unless there is a reason to believe that the remand might lead to a
different result.”).
Plaintiff admits that “the problem which precluded him from competitive
employment was, in part, the nonunion of his broken left ankle.” Plt.’s Br., dkt. #12 at 14.
(Although plaintiff uses the term “in part,” he does not argue in his brief that other
impairments precluded him from competitive employment). However, the administrative
law judge determined that the limitations that the physicians assessed for plaintiff,
particularly regarding his ankle, were not consistent with the evidence in his medical record
showing that plaintiff’s condition had improved significantly by the time the physicians had
completed the residual functional capacity forms in May and June 2012 and that it
continued to improve.
The administrative law judge’s reasoning is well-founded. As detailed in the facts
section of this opinion, the record shows the following:
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•
May 6, 2011: Plaintiff fractured his ankle.
•
May 7, 2011: Dr. Eckerman performed surgery to repair ankle.
•
August 10, 2011: Dr. Eckerman performed second surgery to repair ankle.
•
September 2011: Dr. Eckerman noted that plaintiff’s pain and swelling had gone
down and he had good range of motion.
•
December 2011: Plaintiff reported feeling better. Dr. Chan directed finding of
“not disabled” because ankle was healing and plaintiff could adjust to sedentary
work.
•
January 2012: Plaintiff complained to Dr. Eckerman of increased pain and
swelling in his ankle.
•
February 2012: Plaintiff saw Dr. Logan, who noted that plaintiff’s ankle was not
giving him significant difficulty.
•
May 9, 2012: X-rays of plaintiff’s ankle showed that the fracture was healed.
•
May 11, 2012: Dr. Logan completed residual functional capacity form saying
plaintiff suffered from unspecified problems with his left ankle, knee, hip, and
right shoulder, and estimating that plaintiff could walk only 100 feet, sit or stand
for only 15 minutes at a time, needed eight 15-minute breaks in an eight-hour
day, could never lift more than ten pounds and was not capable of working on a
full time basis.
•
June 4, 2012: Dr. Eckerman completed residual capacity form saying plaintiff
suffered from post-operative pain in his left ankle; Dr. Eckerman assessed the
same limitations Dr. Logan had, except for estimating that plaintiff could lift 20
pounds occasionally.
•
August 2012: Although plaintiff had some lingering pain, Dr. Eckerman noted
that plaintiff was “certainly better” and on his ankle “quite a bit.”
•
December 17, 2012: Dr. Logan estimated plaintiff could walk for only five
minutes, sit for approximately 30 minutes and could not perform his activities of
daily living.
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•
December 19, 2012: Dr. Eckerman evaluated plaintiff, noting that the fracture
had nearly healed and plaintiff was in regular shoes and feeling better, although
walking with a limp.
•
February 2013: Dr. Eckerman removed hardware from plaintiff’s ankle.
•
February 25, 2013: Plaintiff reported to Dr. Eckerman that he was improving,
and Dr. Eckerman noted that plaintiff was healing well without complication, had
acceptable range of motion and was full-weight bearing.
•
February 25, 2013: Dr. Eckerman wrote a note restricting plaintiff from working
because of recent foot surgery.
•
March 4, 2013: Sutures removed from plaintiff’s ankle and Dr. Eckerman noted
that plaintiff had very little pain and swelling, his work status was “light
work/activity” and he was not taking any pain medication.
As noted by the administrative law judge, the evidence shows that by May 2012,
plaintiff’s ankle fracture had healed and was not giving him any significant difficulty.
Although plaintiff suffered some lingering pain from the hardware in the later half of 2012,
Dr. Eckerman stated in August 2012 that plaintiff was active and remained on his ankle
quite a bit. Nonetheless, on December 17, 2012, Dr. Logan wrote that plaintiff could walk
for only five minutes, sit for approximately 30 minutes and could not perform his activities
of daily living. Only two days later, on December 19, 2012, Dr. Eckerman evaluated
plaintiff and noted that his fracture had nearly healed, he was in regular shoes and feeling
better. After the hardware was removed from plaintiff’s ankle in February 2013, his pain
subsided to the point that he could perform light work and activity and not take any pain
medication. Accordingly, it was reasonable for the administrative law judge to conclude from
this evidence that the physicians’ assessments of plaintiff in the medical record and on the
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residual functional capacity forms were internally inconsistent, as well as inconsistent with
the other substantial evidence in the record. Hall, 489 F. Appx. at 958.
Although plaintiff concedes that his broken ankle improved, he says that the
administrative law judge failed to consider Dr. Logan’s statements that he required heavy
doses of pain medications that made him drowsy and dizzy. Plt.’s Br., dkt. #12 at 14.
However, the administrative law judge acknowledged that he had not accommodated all of
plaintiff’s alleged symptoms because he had considered the evidence and determined that
some of plaintiff’s statements were not entirely credible as to the intensity, persistence and
limiting effects of some of his symptoms, including drowsiness. AR 34. Because plaintiff
has not challenged the administrative law judge’s credibility determination, he has waived
the argument. Even if he had not, I find that the administrative law judge did not commit
any obvious error in reaching his credibility determination.
An administrative law judge’s credibility determination is entitled to deference only
if he explains his reasoning and builds an accurate and logical bridge from the evidence to
his conclusion, “but he need not provide a complete written evaluation of every piece of
testimony and evidence.” Shideler v. Astrue, 688 F.3d 306, 310-11 (7th Cir. 2012) (quoting
Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005). In this case, the administrative
law judge pointed to specific evidence in the record that supported his credibility
determination. He noted that plaintiff reported significant improvement in his ankle and
that plaintiff was not always compliant with the recommendations of his doctors. The
administrative law judge determined that this evidence conflicted with the level of symptoms
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and limitations described by plaintiff. AR 34. Further, the administrative law judge noted
the lack of any record of plaintiff’s seeking medical treatment for any of his ailments
between his alleged onset date of June 30, 2010, the same day his former place of
employment went out of business, and May 6, 2011, when he fractured his ankle in the
tractor accident. AR 36. These were good reasons for not giving weight to plaintiff’s reports
of dizziness and drowsiness.
Plaintiff does not challenge the administrative law judge’s conclusion that Dr.
Eckerman’s February 2013 opinion does not amount to a permanent restriction. That
conclusion is also well founded. AR 35, 353. Dr. Eckerman’s opinion consisted of two
sentences: “Riley Forsythe is currently under my medical care and may not return to work
at this time. Activity is restricted as follows: off work due to foot surgery and being nonweightbearing.” AR 353 (emphasis added). The surgery was to remove the hardware that
had been placed in plaintiff’s ankle in 2011 to facilitate healing of the fracture. AR 34. It
was reasonable for the administrative law judge to infer from Dr. Eckerman’s statement that
plaintiff could not return to work “at this time” meant that plaintiff was restricted from
working only so long as the surgical wound had not healed, not to restrict him permanently
from working. Further, in March 2013, Dr. Eckerman noted that plaintiff was able to
perform light work and activity, indicating that he was revising the previous restriction of
no weightbearing activity.
It is worth noting that although plaintiff’s brief focuses almost entirely on plaintiff’s
ankle injury, Dr. Logan indicated on the residual functional capacity form that plaintiff’s
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femur fracture, shoulder injury and left knee impairment prevented him from standing for
more than five to eight minutes at a time, walking for more than a block or sitting for more
than twenty minutes. AR 320-22. Plaintiff testified to the same limitations. AR 80-84.
The administrative law judge did not find these limitations credible because they related to
longstanding problems that had not kept plaintiff from working in the past up until his
employer’s business closed on June 30, 2010. AR 34, 208. The administrative law judge
also noted that the record showed that plaintiff had not sought any medical treatment
between June 2010 and May 6, 2011, when he fractured his ankle. AR 34. The record
supports the administrative law judge’s findings. Nothing in the record indicates that
plaintiff sought treatment for symptoms related to these prior injuries, and plaintiff reported
working several jobs without significant difficulty for at least eleven years after injuring his
femur, shoulder and knee. AR 71-78.
Nonetheless, the administrative law judge gave
plaintiff the benefit of the doubt and took into consideration all of the effects of plaintiff’s
impairments, before limiting plaintiff to sedentary work with occasional overhead lifting for
the entire period at issue. AR 35.
In sum, I find that the administrative law judge properly considered all of the medical
evidence and the record as a whole when deciding to give little weight to Dr. Logan’s and Dr.
Eckerman’s opinions and that he provided well founded reasons for his decision.
Accordingly, I am affirming the administrative law judge’s decision.
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ORDER
IT IS ORDERED that plaintiff Riley Forsythe’s motion for summary judgment, dkt.
#11, is DENIED and the decision of defendant Carolyn Colvin, Acting Commissioner of
Social Security, is AFFIRMED.
The clerk of court is directed to enter judgment for
defendant and close this case.
Entered this 23d day of April, 2015.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge
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